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A technicality and a lame decision have made it illegal to unlock mobile phones. It's a mess Congress can easily fix, said FCC Commissioner Pai.

At a Cell Phone Unlocking Forum June 17, hosted by the nonprofit think tank TechFreedom and the nonprofit public policy organization Competitive Enterprise Institute, FCC Commissioner Ajit Pai made two things clear: Changing the current legislation that makes unlocking a mobile phone illegal should be easy to do, and the Librarian of Congress, who could have helped prevent the whole unlocking-is-illegal mess, is kind of a stinker.

For anyone needing clarification, Commissioner Pai gamely noted that unlocking a cell phone is "not like that scene in "War Games" where Matthew Broderick used a pop top from a soda can to make a free call from an 'unlocked payphone.'"

For anyone needing a little more backstory, the Digital Millennium Copyright Act (DMCA), legislation intended to prohibit digital piracy, swept up the unlocking of phones through "a technicality," explained Pai. The DMCA prevents the deactivation of digital rights management software, and unlocking a phone qualifies, in the DMCA's terms, as "circumventing a technological measure."

The Librarian of Congress can grant three-year exemptions, and did so in 2006 and 2009, so that consumers, whose wireless contracts with carriers had expired, could unlock their phones and switch networks if they wanted, without breaking the law.

Further reading

"But the third time wasn't a charm," wrote Pai. "Last October, the Librarian declined to extend the exemption for cell phone unlocking. ... This is a classic case of the government 'solving' a problem that doesn't exit. The free market was working just fine before the Librarian's decision."

On January 26, it became illegal for a consumer to unlock a phone he or she had paid for and owned.

"The FCC didn't create this mess, and it's not in a position to clean it up. The problem is one of copyright law, and Congress should fix it directly," Pai explained.

Second, the law as it stands interferes with carriers' business, by preventing consumers from taking them up on offers.

Third, it's actually an issue that extends beyond phones."The anti-circumvention provisions also target netbooks, tablets, personal digital assistants—pretty much any mobile device," said Pai. "Consumers shouldn't be put in the position of migrating some of their electronics, but not others, from one carrier to the next."

And lastly, it's an issue that can be addressed, as long as it doesn't get tangled in the more partisan issue of copyright law reform.

"Right now, there is wide support for removing cell phone unlocking from the ambit of copyright law. We should push that proposal across the finish line," wrote Pai.

He continued, "Doing all this isn't complicated. In fact, Congress could accomplish these goals in a one-page bill by simply amending the definition of 'circumvention' in the DMCA to exclude 'circumvention initiated by or on behalf of the owner of a wireless communications device solely to connect that device to a wireless communications network."

This fix, Pai concluded, would restore the common-sense approach that was in place "until last October's surprise."

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